Queensland Nurses' Union of Employees v Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane

[2013] FWC 10219

[2013] FWC 10219[Note: An appeal pursuant to s.604 (C2014/2661) was lodged against this decision - refer to Full Bench decision dated 24 March 2014 [[2014] FWCFB 1447] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Queensland Nurses' Union of Employees
v
Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane; The Australian Workers’ Union of Employees, Queensland; and United Voice Union of Employees - Qld Branch
(B2013/1546)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 DECEMBER 2013

Application for a bargaining order.

Overview

[1] On 3 December 2013, the Queensland Nurses Union of Employees (QNU) applied under s.229 of the Fair Work Act 2009 (the Act)for a bargaining order under s.230 of the Act concerning a proposed enterprise agreement - Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013 (the proposed Care and Support Agreement) made between The Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission (Blue Care), the Australian Workers Union of Employees, Queensland (AWU) and United Voice Union of Employees - Queensland Branch (United Voice).

[2] The access period for the proposed Care and Support Agreement commenced on 3 December 2013, and a ballot was scheduled to open on 10 December 2013 and close on 3 January 2014. Following a hearing on 9 December 2013, Deputy President Booth issued an Interim Order requiring that the Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission not proceed with the scheduled ballot for the proposed Care and Support Agreement until the matter was heard 1. The matter was then allocated to me to determine whether a final order should be issued.

[3] The QNU seeks and Order in the following terms:

(a) That the access period for the proposed 2013 Support Workers’ Agreement immediately cease and be cancelled;

(b) That the bargaining representatives including the QNU meet on at least four occasions between 19 December 2013 and 31 January 2014 in respect of attempting to reach agreement about the proposed 2013 Support Workers’ Agreement;

(c) That in the event that no agreement is reached between the bargaining representatives including the QNU by 31 January 2014 in respect of attempting to reach agreement about the proposed 2013 Support Workers’ Agreement, that the Commission convene a further conference in the matter to assist the parties to reach agreement; and

(d) That until further order, no bargaining representative will take any step to request relevant employees to approve the proposed 2013 Support Workers’ Agreement pursuant to section 181 of the Act.

[4] The basis upon which QNU seeks the Order is that it is a bargaining representative for employees who are sought to be covered by the proposed Care and Support Agreement. In seeking the Order, the QNU maintains that the duties set out in Level 2 of the classification structure in the proposed Care and Support Agreement are the duties of Assistants in Nursing, who are properly covered by the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (the 2013 Nursing Agreement).

[5] The QNU points to s.58 of the Act, and contends that the proposed Care and Support Agreement cannot apply to employees covered by the 2013 Nursing Agreement. Essentially, the QNU seeks to negotiate with Blue Care to ensure that the proposed Care and Support Agreement does not purport to cover employees who are properly covered by the 2013 Nursing Agreement. The QNU also contends that the scope of the proposed Care and Support Agreement differs significantly to that of the current Care and Support Agreement, and purports to cover nursing work which is properly covered by the 2013 Nursing Agreement.

[6] Further, the QNU contends that it had no notice of the changes to the scope of the proposed Care and Support Agreement during the negotiations for the 2013 Nursing Agreement and was not aware of the changes to the scope of the proposed Care and Support Agreement until 20 November 2013. It is also asserted that Blue Care has not given notice as required by s.173 and s.174(3) of the Act to any member or potential member of the QNU, in the form prescribed for that purpose at Schedule 2.1 of the Fair Work Regulations 2009.

[7] The application for a bargaining Order is opposed by the Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission, the AWU and United Voice. Those parties variously contend that the QNU is not a bargaining representative for the proposed Care and Support Agreement because it does not have the right to represent employees who are classified as Personal Carers under that Agreement.

[8] It is further contended that there are discretionary grounds upon which the Order sought by the QNU should not be made. Essentially, those grounds are that the QNU does not wish to negotiate with the other bargaining representatives about the proposed Care and Support Agreement but rather wishes to force them to amend it, in circumstances where, if the QNU’s argument is correct, the proposed Care and Support Agreement does not cover those employees for whom the QNU claims to be a bargaining representative.

[9] The application was heard on 18 December 2013. Evidence was given in support of the Application by:

● Ms Rhonda Louise Orreal employed as an Assistant in Nursing and a Personal Carer at Blue Care’s Erowal Facility at Maleny;
● Ms Olwyn Beatrice Scott employed as a Personal Carer at Azure Blue Redcliffe; and
● Ms Veronica Therese Semple Industrial Officer with the QNU.

[10] Evidence in support of Blue Care and Wesley Central Mission was given by:

● Mr Kevin Davy, Integrated Services Manager at Azure Blue, Redcliffe;
● Ms Deborah Hastings, Senior Account Manager at PMA Solutions which undertakes printing and mailing services for Blue Care;
● Jane Suller, Services Manager at Blue Care Erowal.

[11] Submissions in opposition to the QNU application were made by the AWU and United Voice. Evidence for the AWU was given by an Industrial Advocate, Mr Peter Eldon. I have considered all of the evidence and submissions in the relatively short time frame in which a Decision was required to be given.

Background

[12] It is necessary to set out some of the history to the present application. The Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission operate a number of aged care facilities in Queensland. Those facilities offer a range of living options including residential aged care facilities and serviced and non-serviced apartments. The residential aged care facilities have residents who are classified according to levels of acuity, as “high care” or “low care”.

[13] There is recognition by Government that the split between high care and low care is outdated and a move to a model that is described as Consumer Directed Care. Blue Care is responding to this change through implementation of a model it terms the Blue Care Tailor Made model to assist it in responding to the reforms. The result is that at some facilities, residents classified as “high care” and “low care” are accommodated in the same areas without distinction, so that care for both classifications of resident is provided by the same employees.

[14] Employees providing care for residents at facilities operated by Blue Care and Wesley Central Mission have been traditionally covered by two enterprise agreements. One agreement covers nursing employees and the other agreement covers a range of employees including a classification known as Personal Carers. The two enterprise agreements currently in operation are:

● Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (the Nursing Agreement); and

● Blue Care - WMAHC - AWU - LHMU Certified Agreement (No 5) 2005 (as varied and extended 2008) (the current Care and Support Agreement).

[15] The current Care and Support Agreement reached its nominal expiry date on 31 December 2011. Negotiations for the proposed Care and Support Agreement (which is intended to replace the current Carer and Support Agreement) have been proceeding in 2013. According to the evidence of Mr Eldon, most of the negotiation meetings occurred after May 2013 and the parties reached agreement in principle in November 2013 that the proposed Care and Support Agreement would go to a ballot of employees. In the interim employees under the current Care and Support Agreement have been receiving wage increases by administrative arrangement.

[16] On 26 March 2013, the QNU filed an application under s.739 of the Act, for the Commission to deal with a dispute in accordance with a dispute settlement procedure under the Blue Care/Wesley Mission Brisbane Nursing Agreement 2011 the predecessor to the 2013 Nursing Agreement. Conferences of the parties were held on 11 April, 11 June, 28 August, 2 September and 6 September 2013. Initially the matters in dispute related to a review of rostering and hours proposed by Blue Care and an assertion that Blue Care is proposing to replace Assistants in Nursing (AINs) with Personal Carers (PCs). The matter in dispute is now limited to the issue relating to the alleged replacement of AINs with PCs (the classification dispute), and the following question was scheduled to be arbitrated on 16, 17 and 18 December 2013 and a number of dates in early 2014:

“Whether Ms Olwyn Scott and Ms Rhonda Orreal [who gave evidence in the current proceedings] and other employees employed by the Respondent who are performing the same or substantially the same work as Ms Olwyn Scott and Ms Rhonda Orreal, should be employed by the Respondent in the classification of Assistant in Nursing as described in the classification statement in Schedule 3 to the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013.”

[17] Prior to filing the application for a bargaining order, the QNU filed an application under s.240 of the Act seeking the assistance of the Commission to deal with a bargaining dispute. On 2 December 2013 the QNU advised that it would not pursue the bargaining dispute application. Given the urgency of the QNU application for a bargaining order, the hearing dates for the classification dispute of 16 and 17 December 2013 were vacated, and the bargaining order application was heard on 18 December 2013.

[18] It is apparent from this brief history that the issue of whether some or all employees classified as Personal Carers and said by Blue Care to be covered by the current and proposed Care and Support Agreement, should be classified as Assistants in Nursing and covered by the current Nursing Agreement and its predecessor, has long been agitated between the parties.

The issues in dispute

[19] The issues in dispute are:

● Whether the QNU is a bargaining representative for the purposes of the proposed Care and Support Agreement;
● Whether the notice requirements for the making of an Order have been met or should be waived;
● Whether the Commission should refrain from making the Order on discretionary grounds because:

○ The QNU has unreasonably delayed seeking to be involved in bargaining for the proposed Care and Support Agreement;
○ The QNU is not seeking to genuinely bargain with Blue Care, Wesley Mission and the other bargaining representative; and
○ Granting the Orders will delay the ballot for the Care and Support Agreement.

[20] Given the urgency with which the matter was heard and the need for a decision to be issued, I set out below the conclusions I have reached, and indicate that full reasons for those conclusions will be issued as soon as possible after the Christmas/New Year break.

The QNU is a bargaining representative for the proposed Agreement

[21] It is not in dispute that the QNU has two members, Ms Scott and Ms Orreal, who will be covered by the proposed Care and Support Agreement, and who are performing work that is covered by the classification of Personal Support Assistant in that Agreement. What is in dispute is whether the QNU is entitled to represent the industrial interests of those persons in relation to work covered by the Agreement.

[22] The evidence in relation to the work performed by Ms Scott and Ms Orreal is that the duties performed by both employees as Personal Carers are essentially those that are performed in other Blue Care facilities by Assistants in Nursing. Indeed, Ms Orreal is currently performing work in both classifications at different locations within the same facility. The evidence of Ms Scott and Ms Orreal in relation to this issue was supported by Ms Suller who gave evidence on behalf of Blue Care. It is also clear from the evidence of Mr Davy, that a decision was made with respect to Azure Blue, to classify new employees at that facility as Personal Carers, notwithstanding that persons who had transferred to Azure Blue from other Blue Care facilities or who are performing the same work at other facilities, are classified as Assistant Nurses.

[23] In NSW Nurses and Midwives Association v SOS Nursing & Homecare Service Pty Ltd, Deputy President Booth summarised the authorities with respect to interpreting the eligibility rules of registered organisations of employees. 2 Those authorities include the decision of a majority of the High Court in R v Williams Ex parte Australian Building, Construction Employees’ and Builders’ Labourers Federation3where it was held that:

“...it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries.”

[24] The issue of whether employees performing work termed “personal care services” or, as in the proposed Care and Support Agreement in these proceedings - “personal support services” - has a long and tortured history. Blue Care has been involved in that history, since at least 2004 when a Full Bench of the Queensland Industrial Relations Commission, of which I was a member, made the Blue Care Enterprise Award 2004. 4That Award is one of the Awards that underpins and defines the scope of the current Care and Support Agreement. The Full Bench dealt at length with the issue of whether the coverage of that Award overlapped with that of the instruments that covered nurses and assistant nurses.

[25] A key finding of the Full Bench in that case was that the Australian Workers Union does not have coverage of Personal Carers working in nursing homes. While I accept that the lines between a nursing home and an aged care facility have blurred, I do not accept that the situation has changed to the extent that I could be satisfied that all of the employees under the proposed Care and Support Agreement who will be classified as Personal Support Attendants and in particular Ms Scott and Ms Orreal, are not eligible for membership of the QNU.

[26] When the history of this matter is considered, it is clear that some of the work described in the proposed Care and Support Agreement is work that has been considered and treated by Blue Care and the other Unions party to that proposed Care and Support Agreement, as work that is performed by Assistants in Nursing.

[27] I am satisfied that the QNU, by virtue of clause 6 of its Rules, is entitled to represent the industrial interests of Ms Scott and Ms Orreal in relation to work that will be performed under the Proposed Care and Support Agreement, and that the QNU is a bargaining representative for those employees. It is also clear that the work performed by Ms Scott and Ms Orreal is work performed by Assistants in Nursing within the Rules of the QNU. Accordingly, the requirement in s.229(1) of the Act has been met.

The QNU has met the notice requirements under s.229(4) of the Act

[28] I am satisfied that the QNU has met the notice requirements under s.229(4) of the Act. The QNU gave notice of its concerns in relation to the negotiations for the proposed Carers Agreement, by letter to the Executive Director and Human Resources Consultant for Blue Care. The concerns notice sent by Mr Elder of the QNU on 21 November 2013, states that:

● The QNU became aware on 20 November that negotiations for the proposed Care and Services Agreement had been finalised by virtue of being served with a statement of a witness for Blue Care in the dispute application;
● The QNU has members who are currently classified as Personal Carers and would be covered by the proposed Care and Services Agreement;
● The QNU is a default bargaining representative within the terms of s.176 of the Act on the basis that its rules include coverage of Assistants In Nursing, however titled; and
● Blue Care has not met the requirements for good faith bargaining in particular by failing to recognise and bargain with other bargaining representatives for the Agreement.

[29] Blue Care responded to the notice by rejecting the proposition that the QNU is a default bargaining representative and contending that the QNU is not entitled to represent the industrial interests of employees under the proposed Care and Services Agreement.

[30] I accept that the QNU did not give such a notice to the other bargaining representatives, the AWU or United Voice. However, I also accept that the concerns of the QNU were principally in relation to the conduct of the employer parties to the Agreement. The issue of whether notice under s.229(4) is required to be provided to all bargaining representatives was dealt with by Senior Deputy President Richards in CFMEU v Ostwald Bros Pty Ltd 5, where his Honour held that the requirement to give notice is met, if the written notice is given to the bargaining representative about whom the applicant bargaining representative holds concerns.

[31] In any event, the AWU and United Voice had the notice on 26 November 2013 when the QNU notified a bargaining dispute, and on 3 December 2013 as an attachment to the present application. I am also of the view that given the history of this matter and the disputation related to it, that the QNU held concerns about the issue of coverage of employees said to be Personal Carers could have come as no surprise to those organisations. Further, given the QNU had concerns, as evidenced by the previous litigation and the classification dispute in relation to the current Care and Support Agreement, it would hardly have surprised any of the negotiating parties to the proposed Agreement, that the QNU’s concerns would be exacerbated by the apparent widening of the scope of the proposed Care and Support Agreement.

[32] On the basis of the other actions taken by the QNU in relation to pursing this matter, I am also of the view that any non-compliance should be waived, in all of the circumstances of this case. Accordingly, I am satisfied that the requirements in s.229(4) of the Act have been met.

Other requirements for an Order to be made

[33] There is no issue with the timing of the application. The Agreement covering the employees who are to be covered by the proposed Care and Support Agreement expired in November 2011.

Are there discretionary grounds for refusing to make the Order?

[34] I do not accept the submissions advanced by Blue Care, the AWU and United Voice that there are discretionary grounds that would justify a refusal to make the Order. It is true that the conduct of the QNU in pursuing its long expressed interest in the application and scope of the current and proposed Care and Support Agreements has left much to be desired.

[35] It should have been reasonably apparent to the QNU that the parties negotiating a new Care and Support Agreement may be negotiating a change to the application of the classification structure of the Agreement. This is particularly the case given the QNU’s agitation of the issue. Given its concerns, the QNU should also have monitored the situation with respect to the negotiations and sought to press its status as bargaining representative at an earlier point.

[36] I also accept that the QNU is seeking to negotiate about the scope of the proposed Care and Support Agreement with the objective of removing from its operation, those employees it claims to represent in relation to the Agreement, in circumstances where the QNU contends that those employees are not properly covered by the proposed Care and Support Agreement regardless of its scope.

[37] Although on one view, the QNU position is a classic “Catch 22” it is the case that a Full Bench of the Commission has held that there is no indication in the statutory provisions that a bargaining representative arguing for a different scope for an agreement is necessarily not trying to reach agreement 6. The scope of an agreement can be the subject of negotiations. That the QNU seeks to negotiate a different scope to that agreed by other bargaining representatives, is not grounds for refusing to exercise the discretion to make a bargaining Order.

[38] It could equally be said that Blue Care has an implacable position about the scope of the proposed Care and Support Agreement. A possible outcome of further discussions may be movement on the part of either Blue Care, the AWU and United Voice on the one hand, or the QNU on the other.

[39] Balanced against these considerations, is the fact that in full knowledge of the history of the issue of coverage and work to be performed by Personal Carers and Assistants in Nursing, and of live proceedings in relation to its current Care and Support Agreement, Blue Care proceeded to negotiate a replacement for that Agreement with what on any view, is a significantly amended application clause and classification structure. In my view, this constitutes a failure to meet the good faith bargaining requirements which should be addressed by the making of a bargaining Order.

[40] In making a bargaining Order the delay will be relatively short, particularly in the context of the lengthy period exceeding two years, between the nominal expiry date of the current Care and Support Agreement and the making of the proposed Agreement. Blue Care has paid wage increases on an administrative basis and has within its power the decision as to whether to continue to do so, while it holds discussions with the QNU in relation to its concerns about the proposed Agreement.

Conclusion

[41] I do not propose to issue an Order in the terms sought by the QNU. Those terms would require a delay of at least one month and further conciliation proceedings before the Commission. In my view it is appropriate to issue an Order that operates until 31 January 2014, and requires the parties to meet and confer on four occasions during that time. I am also of the view that it is not appropriate to issue an Order requiring the parties to attend a conciliation conference in the Fair Work Commission. The Commission is available to conduct a conference if the parties agree that this is appropriate.

[42] In my view, the meetings will put the QNU in the position that it would have been in had its rights as bargaining representative been recognised. The terms of the Order also reflect my view that the positions adopted by both parties are unlikely to be altered, and that the question of whether the scope of the proposed Agreement is appropriate will continue to be ventilated in other proceedings.

[43] This Decision should not be taken as an acceptance of the proposition that the classification of Personal Carer or Personal Care Assistant or that Ms Scott or Ms Orreal is properly covered by the 2013 Nursing Agreement or its predecessors. That matter remains to be determined.

DEPUTY PRESIDENT

Appearances:

Mr J. Merrell on behalf of the Queensland Nurses’ Union of Employees.

Mr C. Murdoch of Counsel on behalf of Blue Care and the Wesley Mission.

Mr A. Herbert of Counsel on behalf of the Australian Workers Union of Employees Queensland.

Mr D. Peverill on behalf of United Voice Industrial Union of Employees.

Hearing details:

2013.

Brisbane:

December 18.

 1   PR545487

 2   [2013] FWC 5062

 3 (1982) 153 CLR 402, at 407.

 4   Blue Care v AWU [2004] QIRComm 27; 175 QGIG 987 (27 February 2004).

 5   [2012] FWA 1870.

 6   Stuartholme School and Others v Independent Education Union of Australia [2010] FWAFB 1714.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR546356>